This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2013AP2516-CR

Cir. Ct. No.2012CM192

STATE OF WISCONSIN

IN COURT OF
APPEALS

DISTRICT IV

State of Wisconsin,

Plaintiff-Respondent,

v.

Thomas G. Smith,

Defendant-Appellant.

APPEAL
from a judgment of the circuit court for Iowa County:william
d. dyke, Judge.Reversed and
cause remanded with directions.

¶1LUNDSTEN, J.[1] Thomas
Smith appeals a judgment convicting him, after a jury trial, of disorderly
conduct and unlawful use of a computerized communication system. The convictions for these misdemeanor crimes were
based on two comments Smith posted on a police department Facebook page.Smith argues that the circuit court should
have granted his motion to dismiss because his Facebook comments were protected
speech.The State argues that the
comments are not protected speech because they are “fighting words.” The State does not persuade me that Smith’s
comments can reasonably be construed as fighting words.And, the State’s briefing provides no other
basis on which to uphold Smith’s convictions.Accordingly, I reverse and remand for the circuit court to vacate the judgment
and dismiss the charges against Smith.

Background

¶2On July 20, 2012, the Village of Arena police department
posted a status update on its official Facebook page:

We would like to thank the
citizens … that assisted the Arena Police Department in attempting to locate two
out-of-state juvenile males.The
juveniles ran from a Sharon Street address after an officer attempted to make
contact with them ….The same two males
along with a third local juvenile male were also arrested later the same
evening for burglary of a business ….Two of the males were detained by residents until law enforcement
arrived, the third male was located and arrested a short time later ….

¶3Within the next 24 hours, several Facebook users posted comments
on the police Facebook page.Some of the
users appeared to have knowledge or opinions, or both, about the underlying
facts of the arrests.The comments
included:

Thanks for searching my house and accusing me of
harboring so called dangerous fugitives … and since when is it ok for a
resident to point a gun at a couple [o]f KID’S [sic] heads?If that was anyone else’s kids pretty sure it
would be a big deal.Oh wait though,
they were black so [i]t’s ok.Thanks to
everyone that made our town look like nothing but a racist, prejudice[d] place
to live.I’m embarrassed to say I’m part
of that kind of community.If I were
black I’d run too.

And don’t anybody say it isn’t about race because it is
when I ask the cop specifically what they look like and his response is they
will stand out because they don’t belong here[.]

Sooo happy I left that town.

Good thing the s[c]enario didn’t go down in my hood it
would have ended a lot differently … bang sheee bang[.]

¶4Smith posted two comments, subsequent to those quoted above,
which read:

Fuck the fucking cops they ant shit but fucking racist
basturds an fucking all of y’all who is racist[.]

Fuck them nigers policy bitchs wat the you got on us
not a darn thing so fuck off dicks[.]

There was no allegation, and no
evidence at trial, that Smith was in physical proximity to Arena police when he
posted his comments.

¶5Based on Smith’s comments, the State charged Smith with
disorderly conduct and with unlawful use of a computerized communication
system.SeeWis. Stat. §§ 947.01
and 947.0125(2)(c).[2]Before trial, Smith moved to dismiss the
charges on First Amendment grounds. In
opposing Smith’s motion, the State argued that Smith’s Facebook comments were
not protected speech because they were fighting words.The circuit court denied Smith’s motion.

¶6At trial, after the close of the State’s evidence, Smith
again moved to dismiss, and the circuit court denied the motion.The jury found Smith guilty on both counts.

Discussion

¶7Broadly speaking, the parties agree that the question on
appeal is whether the statutes under which Smith was prosecuted were
unconstitutionally applied to Smith in violation of his First Amendment
rights.They also agree that the State
has the burden to show beyond a reasonable doubt that the application of the
statutes to Smith is constitutional.See State
v. Baron, 2009 WI 58, ¶10, 318 Wis. 2d 60, 769 N.W.2d 34; State
v. Weidner, 2000 WI 52, ¶7, 235 Wis. 2d 306, 611 N.W.2d 684 (“[W]hen a
statute infringes on rights afforded by the First Amendment, … the State
shoulders the burden of proving the statute constitutional beyond a reasonable
doubt.”).My review of this question is
de novo. SeeWeidner, 235 Wis. 2d 306, ¶7.

¶8The parties further agree that the more specific question here
is whether Smith’s comments constituted fighting words so that those comments are
not entitled to First Amendment protection.The State does not argue that there is any other basis on which Smith’s convictions
based on his Facebook comments might be upheld consistent with First Amendment
protections.For the reasons that
follow, I agree with Smith that his comments cannot be construed as fighting
words.

¶9As an initial matter, I observe that the parties do not appear
to make a distinction between Smith’s pretrial motion to dismiss and his motion
to dismiss after the close of the State’s evidence at trial.So far as I can tell, the parties’ approach is
a logical one because the pertinent facts are undisputed, and the parties agree
that the fighting words issue in this case should be decided as a matter of
law.Regardless, my analysis below
supports the conclusion that no reasonable fact finder could conclude on this
record that Smith’s Facebook comments were fighting words.[3]

¶10The seminal fighting words case is Chaplinsky v. New Hampshire,
315 U.S. 568 (1942).In Chaplinsky,
the defendant (Chaplinsky) was distributing literature on city streets when local
citizens complained to the city marshal that Chaplinsky was denouncing religion
as a “racket.”Id. at 569-70.An unspecified “disturbance” occurred, and,
as an officer escorted Chaplinsky to the station, Chaplinsky encountered the
marshal and directed the following words at him:“‘You are a God damned racketeer’ and ‘a
damned Fascist and the whole government of [this city] are Fascists or agents
of Fascists.’”Id. at 569.The Court in Chaplinsky concluded that
Chaplinsky’s comments were fighting words that were not entitled to First
Amendment protection.Id.
at 572-73.The Court explained:

There are certain well-defined and narrowly limited
classes of speech, the prevention and punishment of which have never been
thought to raise any Constitutional problem.These include the lewd and obscene, the profane, the libelous, and the
insulting or “fighting” words—those which by their very utterance inflict
injury or tend to incite an immediate breach of the peace.It has been well observed that such
utterances are no essential part of any exposition of ideas, and are of such
slight social value as a step to truth that any benefit that may be derived
from them is clearly outweighed by the social interest in order and
morality.“Resort to epithets or
personal abuse is not in any proper sense communication of information or
opinion safeguarded by the Constitution, and its punishment as a criminal act
would raise no question under that instrument.”

Id. at 571-72 (footnotes
and quoted source omitted).

¶11Although this definition of fighting words from Chaplinsky
does not necessarily appear limited to situations in which the speaker and
listener are in physical proximity, Smith argues that “remote” communications like
his do not fall within Chaplinsky.He argues, as I understand it, that remote
communications generally cannot be fighting words because they have no similar
tendency to incite an immediate breach of the peace by provoking the listener
to immediate action against the speaker.Smith asserts that courts have declined to apply the fighting words
doctrine outside of the face-to-face context.

¶12The State concedes that “other states have declined to apply
the fighting words doctrine in instances not involving such immediate
contact.”The State nonetheless argues
that Smith’s particular Facebook comments are fighting words.

¶13I will address the State’s more specific arguments below, but I
first pause to laud the parties’ efforts in locating and addressing fighting
words cases from other jurisdictions.Those cases, combined with my non-exhaustive research, convince me that Smith’s
argument is persuasive and that the State’s concession is apt.As far as I can tell, Chaplinsky has rarely if
ever been applied outside of the face-to-face context.[4]

¶14Of particular note is a recent Montana Supreme Court decision, State
v. Dugan, 303 P.3d 755 (Mont.), cert.
denied, 134 S. Ct. 220 (2013).The Dugan
court observed that the United States Supreme Court has not, since Chaplinsky,
upheld a conviction on fighting words grounds.Dugan, 303 P.3d at 762.The
court in Dugan further explained that other courts have “refused to
extend [the concept of fighting words] beyond face-to-face communication” and have
even refused to apply the doctrine “when the communication occurs in person but
the speaker and the addressee are not in close physical proximity.”Id. at 766.

¶15After a review of authorities, the Dugan court concluded
that there was no basis to extend the fighting words doctrine beyond its
traditional application in face-to-face communications.Id. at 769; see also, e.g., Anniskette v. State, 489 P.2d 1012,
1013-15 (Alaska 1971) (no fighting words when speaker called a state trooper a
“no good goddam cop” over the phone); Citizen Publ’g Co. v. Miller, 115
P.3d 107, 113 (Ariz. 2005) (“The fighting words doctrine has generally been
limited to ‘face-to-face’ interactions.”); In re Welfare of S.L.J., 263 N.W.2d
412, 415, 420 (Minn. 1978) (no fighting words when a teenaged suspect yelled
“fuck you pigs” at police officers after being released by the officers and while
walking away from them); State v. Drahota, 788 N.W.2d 796,
804 (Neb. 2010) (“[E]ven if a fact finder could conclude that[,] in a
face-to-face confrontation, [insulting emails] would have provoked immediate
retaliation, [the recipient of the emails] could not have immediately
retaliated.”); State v. Authelet, 385 A.2d 642, 649 (R.I. 1978) (“Unless there
is personally abusive language which is likely to lead to imminent retaliation
in a face-to-face encounter, words cannot be proscribed under Chaplinsky’s
fighting words approach.”); City of Seattle v. Huff, 767 P.2d
572, 574 (Wash. 1989) (“The distance the telephone necessarily puts between the
caller and the listener inherently tends to prevent immediate breaches of the
peace which could more readily result from a face-to-face encounter.”).

¶16Given this case law, I fail to see how Smith’s Facebook
comments can properly be labeled fighting words.

¶17The State appears to argue that Smith’s use of a misspelled racial
slur (“niger”) was intended to describe the police and that directing this
racial slur at police supports a conclusion that Smith’s comments are fighting
words because those comments have a tendency to incite the police to violence. I disagree.First, a reasonable reader of Smith’s disjointed words would wonder who
Smith meant to label with the slur.Second, the State’s authorities in support of this argument each involve
situations in which the slur was directed at the recipient in person.See In
re Shane E.E., 48 A.D.3d 946, 946-47, 851 N.Y.S.2d 711 (N.Y. App. Div.
2008); In re Spivey, 480 S.E.2d 693, 695, 698-99 (N.C. 1997); Cruff
v. H.K., 778 N.W.2d 764, 766-67, 769-70 (N.D. 2010).

¶18The State also argues that, given the context of Smith’s Facebook
comments, his comments had a tendency to incite an immediate breach of the
peace even though they were not made in person. See Chaplinsky, 315 U.S. at 572.The State argues that the pertinent context
is that Smith’s comments were “directed … towards the officers of the Arena
police department, and fresh on the heels of a racially charged and dangerous
situation in the community.”For
support, the State points to evidence that the juveniles the police arrested were
black and were detained at gunpoint by private citizens until the police
arrived.As best I can tell, this
amounts to an alternative argument that Smith’s comments are fighting words
because they have a tendency to incite others to violence directed toward the
police.If the State means to make this
argument, I am not persuaded.

¶19I agree with the State that context matters, but the facts of
this case do not persuade me that Smith’s comments had a tendency to incite an
immediate breach of the peace by others against the police.The State’s argument and supporting evidence are
simply too vague as to who Smith’s comments would have incited and what
immediate breach of the peace might have resulted.Moreover, if the State means to argue that Smith’s
comments may have incited others to violence against the police, this seems to implicate
a related but different test under Brandenburg v. Ohio, 395 U.S. 444
(1969).Seeid. at 447 (“[C]onstitutional guarantees of free speech and
free press do not permit a State to forbid or proscribe advocacy of the use of
force or of law violation except where such advocacy is directed to inciting or
producing imminent lawless action and is likely to incite or produce such
action.”).In this regard, I note that
the State does not present developed argument and, even if it had, I see no
apparent reason that it would have prevailed.

¶20In rejecting the State’s arguments, I need not and do not
conclude that on-line communications could never be fighting words.However, I see nothing in the State’s
briefing or in the facts here that would allow me to apply Chaplinsky beyond its
usual reach to conclude that Smith’s Facebook comments are fighting words.

Conclusion

¶21In sum, for the reasons stated, I reverse and remand for the
circuit court to vacate the judgment of conviction and dismiss the charges against
Smith.

By the Court.—Judgment reversed and
cause remanded with directions.

This
opinion will not be published.Wis. Stat. Rule 809.23(1)(b)4.

[1] This
appeal is decided by one judge pursuant to Wis.
Stat. § 752.31(2)(f) (2011-12).All references to the Wisconsin Statutes are to the 2011-12 version
unless otherwise noted.

[2] The
statutes under which Smith was convicted provide, in pertinent part:

947.01 Disorderly conduct. (1) Whoever,
in a public or private place, engages in violent, abusive, indecent, profane,
boisterous, unreasonably loud or otherwise disorderly conduct under
circumstances in which the conduct tends to cause or provoke a disturbance is
guilty of a Class B misdemeanor.

947.0125 Unlawful use of computerized communication
systems....

(2) Whoever does any of the
following is guilty of a Class B misdemeanor:

….

(c) With intent
to frighten, intimidate, threaten or abuse another person, sends a message to
the person on an electronic mail or other computerized communication system and
in that message uses any obscene, lewd or profane language or suggests any lewd
or lascivious act.

We cite to the current versions
of the statutes, which have not materially changed since the time of Smith’s
comments.

[3] After
denying Smith’s motions to dismiss, the circuit court also denied Smith’s alternative
request that the jury be instructed on fighting words.

[4] Neither
the parties nor I have located a Wisconsin case that provides meaningful
guidance given the facts here.